Click-To-Call Technologies, Lp v. Oracle Corporation

NOTE: This disposition is nonprecedential.

United States Court of Appeals

for the Federal Circuit

______________________

CLICK-TO-CALL TECHNOLOGIES, LP,

Appellant

v.

ORACLE CORPORATION, ORACLE OTC

SUBSIDIARY, LLC, INGENIO, INC.,

YELLOWPAGES.COM, LLC,

Appellees

______________________

2015-1242

______________________

Appeal from the United States Patent and Trademark

Office, Patent Trial and Appeal Board in No. IPR2013-

00312.

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Decided: November 12, 2015

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PETER J. AYERS, Lee & Hayes, PLLC, Austin, TX, for

appellant. Also represented by REID G. JOHNSON, Spo-

kane, WA.

MARK D. FOWLER, DLA Piper US LLP, East Palo Alto,

CA, for appellees Oracle Corporation, Oracle OTC Subsid-

iary, LLC. Also represented by STANLEY JOSEPH

2 CLICK-TO-CALL TECHNOLOGIES, LP v. ORACLE CORPORATION

PANIKOWSKI, III, San Diego, CA; JOHN GUARAGNA, Austin,

TX; JAMES M. HEINTZ, Reston, VA.

MITCHELL G. STOCKWELL, Kilpatrick Townsend &

Stockton LLP, Atlanta, GA, for appellees Ingenio, Inc.,

Yellowpages.com, LLC. Also represented by DAVID CLAY

HOLLOWAY, LINDSAY M. HOPKINS.

NATHAN K. KELLEY, Office of the Solicitor, United

States Patent and Trademark Office, Alexandria, VA, for

intervenor Michelle K. Lee. Also represented by MARY L.

KELLY, THOMAS W. KRAUSE, SCOTT WEIDENFELLER.

______________________

Before O’MALLEY, TARANTO, Circuit Judges, and

STARK, District Judge. *

PER CURIAM.

Appellant Click-to-Call Technologies, LP (“CTC”)

appeals from the final written decision of the Patent Trial

and Appeal Board (“the Board”) on patentability in an

inter partes review (“IPR”) proceeding. Oracle Corp. v.

Click-to-Call Techs. LP, No. IPR2013-00312, 2014 Pat.

App. LEXIS 8333, (P.T.A.B. Oct. 28, 2014). In its appeal,

CTC seeks review of the Board’s initial decision to insti-

tute IPR. Specifically, CTC argues that the IPR proceed-

ings should have been barred by 35 U.S.C. § 315(b), which

provides that an “inter parties review may not be insti-

tuted if the petition requesting the proceeding is filed

more than 1 year after the date on which the petitioner . .

. is served with a complaint alleging infringement of the

patent.” 35 U.S.C. § 315(b).

* The Honorable Leonard P. Stark, Chief District

Judge, United States District Court for the District of

Delaware, sitting by designation.

CLICK-TO-CALL TECHNOLOGIES, LP v. ORACLE CORPORATION 3

While this appeal was pending, we issued a decision

in Achates Reference Publishing, Inc. v. Apple Inc., No. 14-

1767, 2015 U.S. App. LEXIS 17183 (Fed. Cir. Sept. 30,

2015), dismissing the patent owner’s appeals for lack of

jurisdiction on grounds that the Board’s decisions to

institute IPRs were “final and nonappealable under 35

U.S.C. § 314(d).” Id. at *2. There, as here, the patent

owner argued that the Board should not have instituted

IPRs because the petitions were time-barred under

§ 315(b). We explained that § 314(d) barred review of the

Board’s decision to institute because, among other things,

“the § 315(b) time bar does not impact the Board’s author-

ity to invalidate a patent claim—it only bars particular

petitioners from challenging the claim.” Id. at *13. “The

Board may still invalidate a claim challenged in a time-

barred petition via a properly-filed petition from another

petitioner.” Id. We concluded that § 314(d) “prohibits

this court from reviewing the Board’s determination to

initiate IPR proceedings based on its assessment of the

time-bar of § 315(b), even if such assessment is reconsid-

ered during the merits phase of proceedings and restated

as part of the Board’s final written decision.” Id. at *16.

Prior to argument in this case, Oracle Corporation

and Oracle OTC Subsidiary LLC (collectively, “Oracle”)

submitted a Rule 28(j) letter to the court arguing that

Achates mandates dismissal of CTC’s IPR appeal for lack

of appellate jurisdiction. According to Oracle, because

CTC makes the same jurisdictional arguments we reject-

ed in Achates, we should likewise dismiss this appeal for

lack of jurisdiction.

CTC responds that: (1) this court has “recognized a

party’s ability to obtain judicial review when the Board

violates a clear statutory mandate”; and (2) it petitioned

for mandamus relief under 28 U.S.C. § 1651, which also

permits review. Resp. to Rule 28(j) Citation of Suppl.

Authority at 1-2, Click-to-Call Techs., LP v. Oracle, Corp.,

No. 15-1242 (Fed. Cir. Oct. 19, 2015), ECF No. 64. As

4 CLICK-TO-CALL TECHNOLOGIES, LP v. ORACLE CORPORATION

explained below, we conclude that dismissal is warrant-

ed. 1

First, CTC is correct that courts have recognized “an

implicit and narrow exception” to statutory bars on judi-

cial review for “claims that the agency exceeded the scope

of its delegated authority or violated a clear statutory

mandate.” Achates, 2015 U.S. App. LEXIS 17183 at *16

(citations and quotation marks omitted). As we explained

in Achates, however, “statutory interpretation disputes

fall outside this exception for ultra vires agency action,

and [o]nly the egregious error melds the agency’s decision

into justiciability.” Id. at *16-17 (citations and quotation

marks omitted). As noted, this appeal—like Achates—

involves a § 315(b) challenge to an IPR institution deci-

sion. Because CTC’s challenge amounts to a “statutory

interpretation dispute,” dismissal is appropriate. See id.

(concluding that “the Board’s institution decision does not

violate a clear statutory mandate”).

Second, although CTC claims that it has petitioned

for mandamus relief, there is no mandamus petition

pending before us. There are three conditions that must

be met before a writ of mandamus can issue: (1) the

petitioner must “have no other adequate means to attain”

the desired relief;” (2) the petitioner must demonstrate a

“clear and indisputable” right to the writ; and (3) the

court “must be satisfied that the writ is appropriate under

the circumstances.” Cheney v. United States Dist. Court,

542 U.S. 367, 380-81 (2004) (internal citations and quota-

tion marks omitted). In its reply brief, CTC argues in the

alternative that it “has a clear and indisputable right to

1 Given the parties’ Rule 28(j) submissions, we sua

sponte removed this case from the November 2015 argu-

ment calendar and decided to treat it as submitted on the

briefs filed, including the parties’ supplemental submis-

sions.

CLICK-TO-CALL TECHNOLOGIES, LP v. ORACLE CORPORATION 5

issuance of a writ of mandamus because the Board ig-

nored the plain language of § 315(b) by exercising juris-

diction over this case.” Appellant Reply Br. 11. We

conclude that CTC’s cursory allegations in the alternative

are insufficient to permit the court to meaningfully con-

sider the issue at this time.

For the foregoing reasons, we dismiss CTC’s appeal

for lack of jurisdiction.

DISMISSED